Hyperlawhypertext legal database Foley v. Mayor of New York 73 N.Y. St. Rep. 187

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Foley v. Mayor of New York

73 N.Y. St. Rep. 187 Court N.Y. App. Div. Decision date 1896-02-21 English

Delivered by RUMSEY, J.

Contents

Majority

p. 187
Annie Foley, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.
(Supreme Court, Appellate Division, First Department,
Filed Feb’y 21, 1896.)

Headnote

1. Municipal cobfobations—Claim—Filins notice.
Under chapter 572 of 1886, a notice of an intenlion to commence an action to recover damages for injuries must be in Writing.
3. Pleading—Notice.
The fact of the filing of such notice, being a condition precedent to the existence of a cause of action, must be set up in the complaint, or a cause of action is not alleged.
Motion for a new trial on exceptions, ordered to be heard in the appellate division in the first instance.
Miller & Miller, for pl’ff; Theodore Connoly, for def’ts.

The action was brought to recover damages for injuries which .plaintiff alleged she sustained by reason of the negligence of the defendants. The complaint did not allege that notice of intention to commence the action had been filed with the counsel to the corporation within six months after cause of action accrued, as required by chapter 572 of the Laws of 1886. Before any evidence was given, the court dismissed the complaint, on the defendants’ motion, it being conceded that no written notice had been filed, but that only oral notice had been given. An oral notice is not a compliance with the statute. When the law requires a notice to be filed, it implies that the notice shall be in writing. Pearson v. Lovejoy, 53 Barb. 407 , and cases cited. A notice by word of mouth cannot be filed. The filing of the notice is a condition precedent to the existence of a cause of action. Curry v. City of Buffalo, 135 N. Y. 366 ; 48 St. Rep. 482 . The fact of the filing must be set up in the complaint, or a case of action is not alleged. Merz v. City of Brooklyn, 33 St. Rep. 577 ; affirmed, 123 N. Y. 617 ; 38 St. Rep. 1014 .

p. 188
There was no error at the circuit, and the motion for a new trial, must be denied, and judgment- for defendants ordered on the verdict., with costs of the application and of the court below.

All concur.

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